RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0634-19T6

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v. 

MARKELL B. PIERRE,

Defendant-Respondent.

_________________________

Argued February 11, 2020 – Decided March 2, 2020

Before Judges Fisher and Gilson.

On appeal from the Superior Court of New Jersey, Law 

Division, Union County, Complaint No. W-2019-

002789-2004.

Michele C. Buckley, Special Deputy Attorney 

General/Acting Assistant Prosecutor, argued the cause 

for appellant (Lyndsay V. Ruotolo, Acting Union 

County Prosecutor, attorney; Michele C. Buckley, of 

counsel and on the brief).

Lucy Gray-Stack, Designated Counsel, argued the 

cause for respondent (Joseph E. Krakora, Public 

Defender, attorney; Lucy Gray-Stack, on the brief).

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
2

A-0634-19T6

PER CURIAM

At the conclusion of a pretrial detention hearing, the trial judge found the 

State failed to demonstrate probable cause because a video, which captured 

some of the moments before and about the time of defendant's arrest, convinced 

her that the arresting officer's affidavit was untrustworthy. Consequently, the 

judge both denied the State's motion to detain and dismissed the charges without 

prejudice. We vacate the dismissal order and remand for further proceedings 

because the State was not permitted to present any arguments about the 

admissibility or significance of the video.

Defendant was arrested on September 19, 2019, and charged with 

disorderly-persons resisting arrest, N.J.S.A. 2C:29-2(a)(1), and fourth-degree 

criminal mischief, N.J.S.A. 2C:17-3(a)(1). The next day, the State moved for 

pretrial detention.

To establish probable cause at the detention hearing, the State relied only 

on the affidavit of Detective A. Gonzalez, who recounted that he and other 

members of the narcotics bureau were operating in a particular area near 

Jefferson Park in Elizabeth when they determined to arrest S.D. According to 

Gonzalez, two other individuals – defendant and Valentino Pierre – "began to 

approach" the officers arresting S.D., and as defendant and Valentino Pierre 
3

A-0634-19T6

approached my partners, I attempted to grab hold of 

[defendant's] arm while advising him that he was being 

placed under arrest. [Defendant] responded by taking 

the cellphone from Valentino's hand and attempting to 

pull away from me. I then proceeded to take [defendant] 

down to the ground with a leg sweep to effectuate the 

arrest. [Defendant] then attempted to push off the 

ground to avoid being placed in handcuffs, at which 

time, I applied a compliance hold while retrieving my 

handcuffs from my belt. I was able to keep [defendant] 

down on the ground and subsequently placed him under 

arrest.

Gonzalez also claimed that while escorting defendant to a patrol vehicle, he 

"attempted to pull away from me in a possible attempt to flee," and that, "[w]hile 

attempting to gain full control" of defendant, "both he and I slammed into [a] 

patrol vehicle . . . causing a large dent to the rear passenger side door." Once 

inside the vehicle, according to Gonzalez, defendant "continued his erratic 

behavior by yelling profanities and repeatedly kicking the interior plastic 

paneling of the vehicle's door causing additional dents." This affidavit was all 

that the State provided to the court to demonstrate probable cause.

In response, defendant provided a video captured by a mobile phone. The 

video was viewed in chambers by the judge in the presence of all counsel, but it 

was never admitted in evidence. Nor was the video played in open court; 

instead, the judge described on the record what the video depicted. At our 

request, the State provided a copy of the video, which we have reviewed.
4

A-0634-19T6

According to the judge, the video showed Valentino Pierre and defendant

walking in Jefferson Park, down a path, to get a better 

view of [S.D.'s] arrest. They stay[ed] on the far side of 

the path away from the arresting officers as they filmed. 

At one point you hear a man's voice, presumably one of 

the Pierre brothers due to its proximity, say to others in 

the park, "get off the sidewalk, get off the sidewalk so 

they don't say we on the sidewalk."

According to the judge, as the video recording continued capturing S.D.'s arrest, 

"you hear a man's voice coming from a distance and to the left of the video 

saying, 'you want to record me?'" With that the camera "pan[ned] left" and the 

video "show[ed] Det. Gonzalez, dressed in plain clothes, walking quickly 

toward the brothers, while grabbing his handcuffs from his belt holster, and 

again saying 'you want to record me?'" The judge then describes the remainder 

of the recording as evidencing "an immediate tussle to the ground" and 

"someone say[ing] 'save my phone,'" followed by "a guttural thumping noise" 

before the video ends.

In comparing all this material, the judge concluded that Gonzalez's

affidavit contained contradictions, misstatements and omissions:

To begin, it is clear that defendant's arrest was sparked 

by the videoing of [S.D.'s] arrest, and not "the duo"

approaching the officers, as alleged in the affidavit. 

This court also finds that the detective, already having 

retrieved the handcuffs with his left hand, immediately 

grabbed defendant and took him to the ground. At no 
5

A-0634-19T6

time prior to or during the grabbing and take down of 

defendant, did Det. Gonzalez advise defendant that he 

was under arrest, as set forth in the affidavit. The video 

also contradicts the affiant's explanation of need for the 

"compliance hold while retrieving my handcuffs from 

my belt," since we know the handcuffs are in Det. 

Gonzale[z]'s hand before the take down.

Quoting Franks v. Delaware, 438 U.S. 154, 168 (1978), the judge held that the 

probable cause requirement "would be reduced to a nullity if a police officer 

was able to use deliberately falsified allegations." The judge found that the 

affidavit's "misstatements and omissions" were material and were made either 

intentionally or with reckless disregard for the truth. She determined that the 

affidavit was untrustworthy and, therefore, concluded the State failed to 

establish probable cause. With that determination, the judge entered orders that 

both denied detention and dismissed the charges without prejudice.

The State moved for leave to appeal and filed a notice of appeal. Finding 

finality had been achieved, we dismissed the motion for leave to appeal as moot 

and accelerated the State's appeal of both the order denying detention and the 

order dismissing the charges without prejudice. Our disposition of this appeal 

in both respects requires that we focus on the judge's finding that probable cause

was absent.
6

A-0634-19T6

The Criminal Justice Reform Act, N.J.S.A. 2A:162-15 to -26, declares that 

"in a pretrial detention proceeding for which there is no indictment" – as here –

"the prosecution shall establish probable cause that the eligible defendant 

committed the predicate offense." N.J.S.A. 2A:162-19(e)(2). What constitutes 

probable cause remains the same regardless of the setting in which that question 

arises. State v. Ingram, 230 N.J. 190, 206 (2017).

At the detention hearing, the State offered Gonzalez's affidavit to 

demonstrate probable cause for the charges and for defendant's detention. The 

defense responded with a video. After considering these materials, the judge 

found an absence of probable cause to either extend the restraint on defendant's 

liberty or for the charges. If that was all there was for us to consider, we would 

defer to the judge's weighing of the parties' submissions, even though we too 

can read the affidavit and watch the video. See State v. S.S., 229 N.J. 360, 379

(2017) (holding that "a standard of deference to a trial court's factfindings, even 

factfindings based solely on video or documentary evidence, best advances the 

interests of justice in a judicial system that assigns different roles to trial courts 

and appellate courts").

But the record also reveals that the trial judge may have foreclosed the 

prosecutor from responding to what the video revealed or to provide other 
7

A-0634-19T6

evidence in response. After the judge read into the record Gonzalez's affidavit, 

she then asked the assistant prosecutor to "enlighten me on that [for] probable 

cause purposes," and the following then occurred:

[THE ASSISTANT PROSECUTOR]: Your Honor, the 

– the charges in this matter are based on the detective's 

observations and – and direct involvement, exchange 

with the – with the defendant. The video we watched 

does not show the full sequence of events nor does it 

really show the detective's –

THE COURT: Counsel, I'm sorry, I – I'm going to stop 

you. Because I understand your position and I don't 

want to interrupt you and – but I'm going to for 

everybody's sake.

The judge then explained why she found the affidavit untrustworthy in light of 

what the video showed.1

After the judge explained her ruling, the assistant prosecutor explained

that it was his "first time seeing" the video2and began to request a copy when 

he was again interrupted:

1 The judge later amplified her oral decision with a written decision from which 

we quoted earlier in this opinion.

2 As noted, the video was played in the judge's chambers in the presence of 

counsel. We recognize that detention hearings are abbreviated matters at which 

the rules of evidence are not strictly controlling, but we do suggest that the video 

should have been played again in open court when the proceeding was on the 

record. The video should also have been marked as an exhibit so there would 
8

A-0634-19T6

[ASSISTANT PROSECUTOR]: And I have requested 

a –

THE COURT: And I'm not going –

[ASSISTANT PROSECUTOR]: – copy of it.

THE COURT: – to make you sit here and make an 

argument, because I made the argument. And because 

anything you say really wouldn't change this [c]ourt's 

mind, based on what I saw on that – on that video.

In appealing, the State chiefly argues that the judge could not make a 

credibility finding contrary to the State's interests without a hearing at which 

testimony is taken. We reject that position. If the State chooses not to call a 

witness in seeking a probable cause finding, then it cannot later complain when 

the judge finds that information insufficient or unworthy of belief.

Our concern is with the State's argument that the judge prevented the 

prosecutor from arguing about the admissibility or significance of the video or 

presenting whatever it was that he was barred from expressing. Due process 

includes the right to be heard, State v. Garthe, 145 N.J. 1, 8 (1996), a right 

belonging to all parties with an interest in the proceedings, State v. LaResca, 

267 N.J. Super. 411, 420 (App. Div. 1993), including the prosecutor. The record 

be no doubt, on appeal, about what it was that the trial judge viewed, although 

there is no dispute about that here.
9

A-0634-19T6

establishes that the prosecutor was not given a chance to speak but instead was 

cut off by the judge each time he attempted to respond to what defendant had 

offered. We neither express nor intimate any view of whether probable cause 

does or does not exist.

Simple fairness requires that we vacate the dismissal order and remand for 

further proceedings in conformity with this opinion. If, at the conclusion of 

those additional proceedings, the court should find probable cause for the 

charges, then the court may reconsider the denial of the State's motion to detain 

defendant.

The order of dismissal is vacated and the matter remanded for further 

proceedings. We do not retain jurisdiction.